Intended parents’ rights – RKA’s story

“New laws applying to babies due on or after the 5 April 2015 mean that parents will have equal rights, regardless of whether a child is born via surrogacy, adopted or otherwise which can only be positive.”– Merry Varney

RKA, a mother in her thirties from Kent won her battle for compensation for the maternity pay she should have been paid.

RKA cannot carry a child due to a medical condition she has had since birth. In 2011, after IVF treatment, she and her husband created embryos which were transferred to a surrogate. As the pregnancy progressed, RKA spoke to her employer about leave and pay to care for her baby.

She was told that there was no legal obligation to give her paid or even unpaid leave. The employer offered unpaid leave as a goodwill gesture, which RKA accepted. But later she was made redundant.

Unpaid leave is not recognised as ‘protected leave’. Therefore RKA did not qualify for the added legal protection during the redundancy process enjoyed by women on maternity leave and parents on adoption leave.

The only rights a parent of a child born via surrogacy currently has is discretionary parental leave. However, this is often only available after a parental order is granted - usually many months after the baby is born. Parental leave is unpaid, affords no protection in redundancy, is not guaranteed and can be postponed by an employer for a good business reason.

RKA challenged the government in the High Court in an effort to get equal rights for the parents of children born through surrogacy. She received a settlement payment from the government after arguing that she had been discriminated against as she was not entitled to any statutory paid leave, or given employment protection – the rights she would have had if she adopted her child or carried her child.